C2003/1216, Transcript of Proceedings [2003] AIRCTrans 1394 (15 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2003/1216

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

JASP ENGINEERING

Application under section 170LW of the Act
for settlement of dispute re dispute settling
procedure

SYDNEY

1.43 PM, MONDAY, 31 MARCH 2003

Continued from 5.3.03

PN63

THE COMMISSIONER: Can I have the appearances, please?

PN64

MR A. NEILSON: If it pleases the Commission, I appear on behalf of the AMWU in this matter. With me today I have MR M. DAL MOLIN, an organiser of the union.

PN65

MR D. MURRAY: If the Commission pleases, I am from the Master Builders Association. I appear for Jasp Engineering and I have with me MR A. PATEL of the company.

PN66

THE COMMISSIONER: Mr Neilson?

PN67

MR A. NEILSON: Commissioner, the purpose of today's proceedings is for the return of a summons that was served upon Mr Ashok Patel and Mr Mukesh Patel who are directors of Jasp Engineering. Perhaps it might be prudent before I continue my submissions to ascertain whether or not the documents annunciated in the summons have been produced today.

PN68

THE COMMISSIONER: Mr Murray?

PN69

MR MURRAY: Commissioner, my instructions are that the summons was served on Thursday of last week. Mr Mukesh Patel is overseas until about June. However, Mr Ashok Patel is here with such records as he understood were required. Now, he's produced today the certificate of currency, workers compensation. He's produced a file of documents relating to Mr Deacon Too. He's also produced time and wages and other records as set out in paragraph 3 of the summons to witness.

PN70

However, he had understood the summons to apply only in respect of Mr Too and also Mr Maharaj, the subject of proceedings before you on the 5th. Now, that is not in fact as I've discussed with my friend here, Mr Neilson, what's required of him. He had misunderstood what was required of him and I am now instructed that the documents in respect of the remainder of the employees whilst not here can be made available promptly and by promptly my instructions are within about 48 hours.

PN71

The vast majority of the documents, however, are here. They're provided under the summons now and as I say, the summons was only received last Thursday so it was not possible for further detailed advice to be obtained by Mr Patel in the meantime. We have, however, had some discussions in relation to this matter prior to starting today and one would hope that this matter can be resolved without further formalities simply by the production of the remaining documents within a short time period and some discussions following appropriate calculations thereafter.

PN72

THE COMMISSIONER: Thanks, Mr Murray.

PN73

MR A. NEILSON: What the union would simply be seeking to do is just to have this matter adjourned for a number of minutes so we can review the documents that have been produced and compare that with the summons as issued and we can work out what documents do need to be further produced and work out a position from there, Commissioner.

PN74

THE COMMISSIONER: Well, would 10 minutes be sufficient?

PN75

MR A. NEILSON: I'd envisage so, Commissioner, yes.

PN76

THE COMMISSIONER: I'll adjourn for a short period.

SHORT ADJOURNMENT [1.47pm]

RESUMES [2.27pm]

PN77

THE COMMISSIONER: Mr Neilson?

PN78

MR A. NEILSON: Commissioner, Mr Dal Molin and myself have had the opportunity of perusing the documents that the company have produced and at the outset we do note that they are extremely deficient from what the summons which was served upon Mr Patel asked for. The summons which was served upon Mr Patel specifically asked for the records and I believe the Commission has a copy of the summons from the period of 11 September 2000 to date, including all time and wage records, all long service leave certificates of service, all monthly superannuation records, all monthly redundancy scheme records, all monthly CTAS and IUS records and a list containing names and addresses and classifications of all employees.

PN79

Commissioner, what has basically been provided to the union is some time and wage records. Monthly superannuation records have been provided for a period of approximately three months of this year. So we're looking at extremely deficient there. The monthly redundancy records don't appear to have been produced at all. The monthly CTAS and IUS records are extremely deficient. He has provided a copy of the workers compensation certificate of currency.

PN80

He has provided the documentation to support the fact that Mr Deacon Too is engaged as an adult apprentice. Speaking to Mr Patel and his representative today and I think they did offer some excuses to the Commission for their non compliance with the summons, from the AMWUs point of view, we've been for want of a better word, messing around with this matter for a period since February of this year. Mr Dal Molin has served numerous notices and had numerous telephone conversations with Mr Patel in a method to get him to produce the records.

PN81

We served various notices under section 285 and Mr Patel has subsequently refused to comply with it. The parties were before the Commission and in particular yourself on 5 March 2003 where you made some directions that Mr Patel not only meet with Mr Brian Beer the State President of the union. He immediately provided the documents that the union was requesting at the time to us. Mr Dal Molin wrote to the Commission on 18 March 2003 advising that Mr Patel once again had failed to produce the relevant records and the Commission issued the summons which is dated 19 March 2003 which has a return date of 31 March which is today.

PN82

Now, Mr Murray has offered the union the opportunity or has said to the union that the company will produce the relevant time and wage records and whatever missing documentation in two days time and then that should be sufficient enough for the union. The union's concern is, Commissioner, quite frankly that this matter has been going on since February. Mr Patel quite honestly has a different excuse every time you speak to him. I know I've spoken to Mr Patel on one occasion where he indicated to me that he would have the documents available and the documents when Mr Dal Molin went around actually weren't available.

PN83

The summons we say that was issued to Mr Patel and Mr Murray acknowledges what was served on him last Thursday is quite explicit in what it demands from Mr Patel and quite clearly we say Mr Patel has breached section 303 of the Workplace Relations Act which is an offence of this Commission and we believe that he should be held responsible for that breach, Commissioner. From the AMWUs point of view, simply offering the documents to be produced on Wednesday or Thursday of this week is simply unacceptable considering this matter has been going on since February of this year and Mr Patel every time we speak to him offers a different excuse. If it pleases.

PN84

THE COMMISSIONER: Thank you. Mr Murray?

PN85

MR MURRAY: Commissioner, I've read the transcript of the proceedings before you on 5 March. Of course, I wasn't participating at that time. You issued a direction that the company meet with Mr Beer. My instructions are that they did so. They did that on 10 March. My instructions are that on that occasion records were brought to the union but that there was some breakdown in discussions if I can characterise it that way and the records in question were not examined by the union.

PN86

Now, since then, I'm now informed from the words of my friend, there's been a letter which we've not seen, a letter to yourself on 18 March from Mr Dal Molin accusing the company of not producing records. We had a summons served last Thursday which is effectively two business days ago requiring various documents to be produced. Now, in the time available and given Mr Patel's understanding of what this summons required, documents have been provided.

PN87

It's recognised that there are more documents that need to be provided. There's no attempt, however, to evade the obligations. I've said to my friend and Mr Dal Molin before we started that the documents will be provided. I'm instructed that they can be provided within 24 to 48 hours. Now, as far as this matter dragging on and on, as far as I understand it, the union has sought to obtain access to records by issuing what they are pleased to call a section 205 notice. Now, there's no provision for that in the act and there's been some discussions and talk about records being provided but there's no such thing as a section 285 notice even in the act.

PN88

The misunderstanding seems to stem from that and from the communications or miss-communications that have taken place in the meantime, but what I proposed to my friend before we started and again during the short adjournment was that if they want to see the records, the records can and will be provided and I'll give that undertaking that the records will be provided to them for their inspection in accordance with the act. They can then go through them and if they wish make copies as is their right under law and go from there.

PN89

I don't see what waving section 303 in the air what useful part that can play, particularly given the jurisdiction that would be required for such an order to be issued. What we're proposing is very straight forward, Commissioner, and that is that the records simply be provided. Now, they should have been provided today. We accept that. There was a short timeframe and it must be said a misunderstanding of the obligations but the records can be provided and will be provided very shortly after this in order that this matter be brought to a close.

PN90

The dispute is about, as I understand it, access to records. Well, what better and more practical means of solving that than simply providing the records. Now, I accept that the records should have been provided today. Mr Dal Molin has had a number of things to say about that before we started. What we're proposing is that they simply are provided and that we make a time for the records to be inspected by the union. If they wish to make use of the photocopying facilities at the MBA, I'm sure that can be arranged and that should bring this to a close without further need to call upon your assistance, Commissioner.

PN91

THE COMMISSIONER: Are you suggesting that the records be made available at the MBA?

PN92

MR MURRAY: Or if the union wishes to have them made available at some other place. The act simply says that the union has a right to enter premises and if the records are there, they have a right to see them. If they're not there, it's a matter for agreement between the parties. Now, such agreement apparently has not yet been reached. We're proposing a means of reaching agreement to that end. That simply brings all of us into line with the requirements of the act. There's no notice provided for under the act, no section 205 notice as my friend has referred to but simply a provision there that if the records are not available on the site where the union official, the authorised official seeks to see them, then it's a matter of agreement as to a time and place and what I'm proposing is that that time be within 48 hours and that place for want of better be at the MBA. If the Commission pleases.

PN93

THE COMMISSIONER: Well, given that there have been agreements in the past and the matter is back before me again today, I can understand the union's frustration and pessimism about going through it again but I don't see any alternative, quite frankly. It's an argument about the facts. The only way the facts can be ascertained is by looking at the records. Mr Neilson, do you have anything further to say?

PN94

MR A. NEILSON: Perhaps we could get a commitment from the representative of the company as to when the documents will be provided. I don't think Mr Dal Molin particularly wants to travel to the MBA. He's sick of travelling around the place searching out these records. Perhaps it might be prudent if the company actually travelled to the AMWU offices for once and produced them.

PN95

THE COMMISSIONER: Well, I thought there might be some value in Mr Murray giving advice to Mr Patel as to which documents ought to be made available and Mr Murray having some involvement in that process.

PN96

MR MURRAY: Well, Commissioner, I thank you and yes, that is my intention. My instructions are that the documents can be provided to me within 24 hours, tomorrow, and that I would then propose to go through them with Mr Patel and make sure that they are in fact all there and that then as far as venue is concerned, well, I've got no particular objection to travelling out to Granville. I was there the other day. If that's what the union requires, well, perhaps we could even do it here.

PN97

I might also suggest in order that the union's concern about further being stood up, if I can put it that way, I would have no difficulty with a report back being scheduled before yourself if that was required by the union but as far as venue goes, I mean, whether it's at our place at Glebe or at their place at Granville is neither here nor there really. It's just a matter of who has got the space and the facilities to make the photocopies. So as far as that's concerned, that's just a matter of diaries and available venue.

PN98

THE COMMISSIONER: All right.

PN99

MR DAL MOLIN: Commissioner, could I add, what we're seeking as you understand is the documents so we can ascertain the wage claim. I've got no interest in really getting into a debate and where those documents will be exchanged or copies will be provided but as long as there's a speedy result to this matter and we do obtain the records we've now been requesting for 2-1/2 months, that's all we're really after is copies of the records and have them delivered to us. That's all I have to add.

PN100

THE COMMISSIONER: All right. I think, hopefully, we're in the home straight on this matter, if only in terms of providing the documentation.

PN101

MR MURRAY: Well, Commissioner, if I may, could I suggest that we briefly go off the record as far as the mechanics go because Mr Dal Molin may have assisted greatly and we may be able to resolve this very quickly. If it's simply a matter of us preparing copies of documents and sending them over, that might be something that can be resolved off the record very speedily.

PN102

THE COMMISSIONER: Yes. We'll go off the record.

OFF THE RECORD [2.39pm]

RESUMES [2.41pm]

PN103

THE COMMISSIONER: The parties have agreed to a process whereby the records will be inspected within the next 48 hours. I won't relist the matter for a report back because I have a very difficult diary in the next week and a half but the union is at liberty to request the matter to be relisted. I hope it's not necessary and I hope that the matter can be finalised. These proceedings will stand adjourned.

ADJOURNED INDEFINITELY [2.42pm]